Opinion

What if my marriage does not work out?

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

December 3, 2023 | 12:00am

Whenever a person obtains a green card through marriage to a US citizen and they were married less than two years, they are granted a “conditional,” two-year green card and are referred to as a “conditional resident.”

Before the conditional green card expires, the couple must file a joint petition to remove the conditions (Form I-751), after which the person will be issued a 10-year green card. The joint petition is like a status or probation report, where the couple demonstrates that during the previous two years, it was a bona fide, good faith marriage, they lived together, have joint documents, etc. In other words, prove the marriage was not “fixed.”

But what happens if the marriage falls apart and the couple does not live “happily ever after?” For example, during the two-year conditional residency period, they are heading to divorce, the US citizen moved out and will not agree to file the joint petition.

In certain circumstances, the conditional resident can file a “waiver” of the joint petition requirement and have the conditions removed by themselves. The grounds for a waiver of the joint petition requirement include:

The marriage was entered into in good faith but ended in divorce or annulment. This ground requires a final divorce decree. If you have merely filed for divorce and it is pending, this ground would not be available.

The marriage was entered into in good faith, but your US spouse subjected you to battery or extreme cruelty. This is similar to a Violence Against Women (VAWA) green card and does not necessarily require that you suffered physical violence. Even mental cruelty could satisfy this ground. I’ve written articles and posted YouTube videos on what constitutes mental cruelty, which could include name-calling, threatening to pull the petition, threatening to have you deported, not letting you see your friends, not letting you speak Tagalog with your friends or family, etc.

Terminating your conditional resident status would result in “extreme hardship” for you. While this particular ground does not necessarily require proof of a good-faith marriage, I don’t think the chances of proving an extreme hardship waiver based on a fixed marriage would have much hope.

I would also advise that if the marriage is no longer viable and you’re not living together, you should not file the joint petition, pretending to still be living together, when you’re already separated. Or, you filed a joint petition, but while waiting, you separated, and the marriage is over before being scheduled for an interview.

It would be better to pursue a waiver of the joint petition. This is because the US Citizenship and Immigration Services (USCIS) can track where you both are living. If you file a joint petition, but they find out you are living at different addresses, they may suspect it is a fixed marriage, even though you intended a life together at the inception of the marriage.

If you are a conditional resident and must remove the conditions of your green card, I would advise that you consult with an attorney who can help package either the joint petition or a waiver of the joint petition, demonstrating the good faith marriage and proving it was not fixed.

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